C2416/700, Transcript of Proceedings [2001] AIRCTrans 3076 (14 November 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C No 24167 of 2000

AMWU

and

A & A CONTRACT STAFF
AND OTHERS

Notification pursuant to section 99
of the Act of a dispute re wages
and conditions

SYDNEY

10.05, TUESDAY, 30 OCTOBER 2001

Continued from 3.9.01

Hearing continuing

PN857

HER HONOUR: Now, I do not think there are any changes to the appearances in this matter. Mr Benfell?

PN858

MR BENFELL: Your Honour, I have been asked to seek leave to intervene on behalf of the CPSU and there is correspondence to that effect.

PN859

HER HONOUR: Yes.

PN860

MR BENFELL: Shall I do that now?

PN861

HER HONOUR: If you would like to, yes.

PN862

MR BENFELL: The CPSU has asked me to appear on their behalf this morning. My name is Benfell, initial L. I also appear, of course, on behalf of CEPU. And they wrote to the Commission yesterday to explain the reasons for their application for intervention. I understand from my colleague, Mr Terzic, that intervention will not be opposed. Perhaps I could leave it at that for the moment.

PN863

HER HONOUR: Yes. Does anyone wish to say something about leave to intervene being granted to the CPSU?

PN864

MR GALLAGHER: Well, your Honour, can we say by way of reservation, we do not know if that impacts on our side of the record at all. There has been no explanation as to the basis for the intervention but, in any event, can we proceed, your Honour, on the basis that the application for intervention is not of concern to my side of the record. We will seek some explanation from my friend as to the basis of it and if the position that I have just indicated changes, then we will, accordingly, bring that to the notice of the Commission.

PN865

HER HONOUR: Yes. Mr Benfell, I was not in Sydney yesterday, so I have only just seen the letter from the CPSU. They do not wish to be heard in relation to the finding of dispute. Is that right?

PN866

MR BENFELL: That is correct, your Honour.

PN867

HER HONOUR: Yes. All right. Thanks. We will proceed then, on that basis, and note the reservation made by Mr Gallagher. Mr Terzic?

PN868

MR TERZIC: Your Honour, I might start proceedings today by putting your Honour on notice that due to a misunderstanding between the AMWU and the AIG over the calling of witnesses in this matter, we have reached agreement that in the course of today's hearings we will simply deal with various preliminary matters and we will commence witness evidence tomorrow and we will be calling Mr Oliver, the Assistant National Secretary of the AMWU, as a witness. Mr Oliver has not deposed a statement to date. I will examine him briefly on various matters that are, I think, of some probative value in the Commission's current inquiry and then it will be my friend to cross-examine him. After that we will proceed to the AIGs witnesses. That being so, I would anticipate that today's proceedings will be relatively brief.

PN869

HER HONOUR: I would have appreciated advance notice within the panel. I have had pressing - parties pressing for urgent hearings and advance notice of this would have been very much of assistance because those parties could have been given a time for hearing today. Nonetheless, you, Mr Terzic, cannot call your witness today and Mr Gallagher, I am assuming you do not want to put your witnesses in the witness box beforehand. Is that the position?

PN870

MR GALLAGHER: Well, the position that we were in was, as we understood it, as of last Wednesday that Mr Oliver would be coming along to give evidence this morning and we had arranged for one of our witnesses to be available as from 2 o'clock today on the basis that at some stage today the evidence of Mr Oliver would have concluded.

PN871

Now, we do not know about this misunderstanding or how it could have developed because correspondence which was sent to the Commission by my client with a copy to Mr Terzic, I think dated 22nd or maybe 23 October, which sought to vacate the proceedings which had been set down for last Friday, made it clear that our understanding was that Mr Oliver would be coming along today. That letter that I just referred to, if the Commission pleases, is a letter dated 24 October to the Commission, that was faxed to the Commission and a copy was also sent to Mr Terzic.

PN872

Now, we - when I say we, Mr Moir, received a message on his mobile phone at some time around 3 o'clock yesterday, the message having been left at some stage earlier, I think at about 1.30, to the effect that Mr Oliver simply would not be here today and would be here tomorrow. And, frankly, that threw us into a bit of a flat spin. We could not understand how that circumstance could have arisen.

PN873

Today, if the Commission pleases, we were going to seek to deal with one non-controversial matter. That is to say, the 111AAA application that my client has made. And then, secondly, to deal with controversial matter. The controversial matter is the one that, in a sense, we are now dealing with. If it ceased to be a controversy insofar as the parties were concerned, well, I can understand that the Commission might be somewhat upset about it when Mr Terzic indicated to us this morning, just immediately before we came in, that an application for adjournment would not be opposed. Now, we have no difficulty - - -

PN874

HER HONOUR: What application for an adjournment? Till tomorrow?

PN875

MR GALLAGHER: Till tomorrow, would not be opposed. Yes, till tomorrow. We have no difficulty with re-arranging one of our witnesses for tomorrow. That is a person who is resident in Sydney. The other two witnesses that we proposed to call, it was their intention to come up from Melbourne tomorrow. Now, we have to do some rescheduling of those people and perhaps put them off until the next day. We do not anticipate that that will present a problem but it could. If it does present a problem, then, of course, we will do the best we can to ensure communication of that in a timely way to the Commission and to Mr Terzic, but, in any event, to overcome whatever problem is presented. We do not anticipate any great difficulty but I simply indicate that for the record that there might be a problem with the arranging.

PN876

HER HONOUR: Could you just pause for a moment, Mr Gallagher. What is the misunderstanding that you speak of that has given rise to the non-attendance of your witness, Mr Terzic?

PN877

MR TERZIC: Your Honour, the - I used the term, misunderstanding, because I was hoping that there would be no further questioning into what transpired so as to then lead the parties into engaging into some form of disagreement about the bar table about who said what. But it was my proposition originally to Mr Moir - and this is what, I think, prompted the letter requesting a hearing, was that we intended to call neither Mr Cameron nor Mr Oliver in these proceedings and we would be relying on passages that I have already set out in an outline of the case saying that there was not much to be gained by examining witnesses as to the contents of the log.

PN878

We say that evidence of authorisation and the Commission inquiring into issues such as the genuineness of the log can be done on the face of documentary evidence supported by submissions going to the state of the law in this regard. But, nonetheless, I said that Mr Cameron had a very strong reluctance to come and negotiations reached a point where it was agreed that Mr Oliver would be called as a witness. That being so, I, to the best of my recollection, understand in a telephone conversation Mr Moir to have said something to the effect that: well, he can come in the course of proceedings, he need not come first, if you can fit him in.

PN879

I had said earlier that I could have Mr Oliver available for giving of evidence by teleconference because Mr Oliver is resident in Melbourne and Mr Moir said that Mr Gallagher had a particularly strong disinclination to conducting the examination of witnesses in that fashion. So, after making various inquiries of Mr Oliver and his schedule, it was with - I anticipated some comfort to Mr Moir that I could report to him by way of a telephone message yesterday that, yes, Mr Oliver has been secured and he will be coming up as a witness tomorrow morning. To which Mr Moir expressed some consternation over that proposition by saying that: no, he should come first, he is our witness and we should call him first.

PN880

Well, I was - I had proceeded on the basis that what they wanted to do was cross-examine Mr Oliver but not in any particular order in relation to the witnesses they are calling. So, that was the nature of the misunderstanding. I do not want to say that Mr Moir said something that he did not but that was my genuine recollection of various telephone conversations. And I do not think there is anything in the letters that detracts from the account I have just given.

PN881

Well, at any rate, yesterday afternoon various negotiations took place involving the proposition that we could call this morning as a witness a member of the Committee of Management of the AMWU who has responsibility for the labour hire industry and I had said that that particular office holder of the union could be available to give evidence on various matters were relevant. That offer was eventually refused and as late as, I think it might have been 5.30, yesterday Mr Moir said that in all the circumstances the best that could be hoped for in the conduct of these proceedings would be to have Mr Oliver appear as a witness tomorrow morning. Mr Oliver is now making the necessary arrangements to fly to Sydney and attend these proceedings to give evidence.

PN882

Now, I had said earlier that we do not believe that the Commission would be assisted by anything that Mr Oliver would say as to, perhaps, his subjective intentions in voting as part one of approximately 20 members of the Committee of Management of the Union or his views as to - - -

PN883

HER HONOUR: You can make your application in relation to the relevance of his evidence and any constraints that should be put on Mr Gallagher in cross-examining when he attends. Sufficient notice was given to you that the issue of authorisation at least was to be put in issue. So, it seems to me that it would follow that you would be in a position to call all of your evidence on that and not prejudge any ruling that might be made, no matter how confident you might be about the ruling as to the constraints that should be put on the evidence relevant for him to give in cross-examination.

PN884

Now, it seems to me that I need to now better understand what you are proposing about how we use the rest of this week and probably put some timing on the period of time that each of you suspects you will need to run your respective cases and also ensure that all of the witnesses to be called are here and available to give evidence when called upon. Now, to that end, Mr Terzic, will Mr Oliver be here at 10.00 am tomorrow morning?

PN885

MR TERZIC: I am confident that Mr Oliver will be here at 10.00 am this morning.

PN886

HER HONOUR: All right. Mr Gallagher, you should not delay your witnesses. I would have thought we could deal with all of them tomorrow. I am assuming they are the ones who have - on whose behalf you have filed statements?

PN887

MR GALLAGHER: Well, I do not want to say, if the Commission pleases, that we could necessarily deal with them tomorrow. Could I indicate to the Commission what we had in mind?

PN888

HER HONOUR: Yes.

PN889

MR GALLAGHER: We had in mind that Mr Oliver would be cross-examined.

PN890

HER HONOUR: Yes?

PN891

MR GALLAGHER: Thinking of proceedings commencing today, we had in mind that we would take up half an hour, maybe 45 minutes at the most, with the 111AAA application. Therefore, we would have been able to get underway with the cross-examination of Mr Oliver by 10.30 or 10.45. We had arranged for the witness to come in and be here at 2 o'clock so that there would be a seamless transition from the conclusion of the cross-examination of Mr Oliver which we anticipate it would probably occur at some stage after the luncheon adjournment and then carry on and then our witnesses from Melbourne could be here tomorrow. There would be a further two of those.

PN892

Now, that is thrown into a little bit of disarray now. If we take the situation to tomorrow, we have the cross-examination of Mr Oliver and then we have the examination and cross-examination of one of our witnesses. The practical difficulty that we have got that we would ask the Commission to take into account is that the two other witnesses concerned have to come up from Melbourne and the likelihood is that we would certainly get to one of those and might conclude one of those tomorrow. But I would have doubts and I have been wrong about this many times before, obviously, that we would finish all of those witnesses tomorrow.

PN893

That simply means some significant inconvenience and re-arrangement for the person who, perhaps, has to stay overnight or fly back to Melbourne and fly back the next day.

PN894

HER HONOUR: Can I ask you just to interrupt you now - I just interrupt you there. I take it it is Ms Grey who is the witness that you had arranged to be here at 2.00 pm today?

PN895

MR GALLAGHER: Can I go to that specifically? The witness who would be coming from Sydney is Ms Jennifer Grey. She is the one that I mentioned earlier. The other two persons, Mr Ray Fitzgerald, who is the National Industrial Relations Manager for Skilled Engineering, and Mr Robert Barber, who is the Group Employee Relations and Human Resources Manager for ADECCO, both of those persons have to come from Melbourne.

PN896

It would seem to me and it is a matter for the Commission's decision of course as to procedure and that as we see things now, if those witnesses were to be here as from the commencement of proceedings on Thursday, that their evidence would be well and truly finished on that day and we would thus avoid any inconvenience to them. And I might say this and I don't want to make too much of this having regard to what Mr Terzic has said, that the problems that we now have do not arise from anything that occurred on our side of the record, but I don't say any more about that.

PN897

Now, that would mean that submissions could start on Thursday and carry on into Friday and in all likelihood - - -

PN898

HER HONOUR: You should not assume that the parties need to grow into the four days. I would have thought that the matters should have been well and truly finished within two unless you were to raise any new grounds that you intended to proceed with, to object to the finding of dispute. But on the grounds that you have foreshadowed on the grounds that I understood you would be cross-examining Mr Oliver and having read your witness statements, there is, in my opinion, no reason why this matter should go beyond two days.

PN899

The granting of the four days or the setting aside of the four days was done a long time ago. I now regret that I did not revisit that to perhaps bring about a little more discipline to the parties. The Commission does not set aside time for the parties then, at their own will, to use parts of the day, adjourn from time to time and then as it were, grow into and fill all of those days. Now, having said that, I regret I have not alerted you to the fact that I think four days is excessive for this hearing and I just need to live with that.

PN900

Other parties who have pressing hearings that should be listed this week, cannot now be listed because I just do not know on what you are telling me, as to when I might find myself back in Chambers and when I might be just waiting around at the convenience of the parties to resume this matter. Would we perhaps now resume what I wanted to do and that is to put time limits on, or that is to set a program for the attendance of witnesses. I can't understand why those witnesses who had already intended coming here from Melbourne tomorrow can't keep their existing arrangements and attend. I will be doing my best to sit longer hours if required to ensure that they go home tomorrow night.

PN901

I am happy to hear Mr Terzic in relation to the period of time that he thinks he may need to cross-examine them and if he says he is going to take more than a day with the two of them, I might have to revisit that observation. Mr Terzic?

PN902

MR TERZIC: Your Honour, I've read the statements too and if Mr Gallagher is of the view that the statement constitutes all that there is in examination-in-chief, it might be that I can accept the statement into evidence without any cross-examination.

PN903

HER HONOUR: Yes.

PN904

MR TERZIC: But as things have transpired, I now presume that he would wish to adduce further evidence-in-chief in relation to what Mr Oliver might have to say about what his role in this matter is or Mr Oliver's evidence.

PN905

HER HONOUR: But not from the statements - these witnesses who have sworn statements, presumably about the authorisation point?

PN906

MR TERZIC: Based on my appreciation of Commission practise and the law as annunciated by the High Court and other superior Courts, I would be willing to run my case without, as I said, calling any evidence from Mr Oliver. It is still our view that what is on paper, what has been filed in accordance with the Commission's rules etcetera - - -

PN907

HER HONOUR: I understand that, Mr Terzic, but I still think, having been put on notice, that there is a challenge, he has got to turn up.

PN908

MR TERZIC: Yes.

PN909

HER HONOUR: Depending on what application you make and any rulings, he may not turn up for a long time, he may turn up for and have to stay here and be cross-examined for a long time, I don't know, but I don't think you can prejudge that one. So I think, let's not go back to that again.

PN910

MR TERZIC: Sure, yes.

PN911

HER HONOUR: He needs, unless a concession is made by AIG, he needs to turn up and I understand he will be here at 10 tomorrow.

PN912

MR TERZIC: Yes. Unless there is some problem with his air transport which is beyond anyone's control, but he has booked himself - - -

PN913

HER HONOUR: Well, you will let me know in a timely way, Mr Terzic.

PN914

MR TERZIC: Yes, I will. But in relation to the evidence that AIG wishes to call, at the conclusion of hearings today, I will confer with them as to whether they wish to adduce any further evidence-in-chief that might be evidence in reply to anything that falls from Mr Oliver during his evidence.

PN915

HER HONOUR: Yes.

PN916

MR TERZIC: If there is nothing that they anticipate, I might be able to - I anticipate that I will be able to give them an assurance that I would accept their statements as sworn evidence. I notice they haven't been formally sworn, but that is something that the Commission - - -

PN917

HER HONOUR: And without the need to cross-examine them at least on what they have said so far.

PN918

MR TERZIC: Yes.

PN919

HER HONOUR: All right, well that all sounds useful for those discussions to proceed. Mr Gallagher, are you currently instructed to add to the evidence of any of the witnesses that have now sworn these statements?

PN920

MR GALLAGHER: As I understand my present instructions, the answer to that is in the negative, but could I indicate this. That the Commission could go to the statement of Ms Grey.

PN921

HER HONOUR: Yes.

PN922

MR GALLAGHER: And then if I can make these corrections now rather than necessarily have Ms Grey in the witness box, it might assist. If the Commission could go to paragraph 27 of Ms Grey's statement, that is a short paragraph and it has a reference in it to paragraph 27 and that should obviously be 26 and the same applies for paragraph 28, that should be paragraph 26 where it refers to 27 on the first line. And in paragraph 33 - - -

PN923

MR TERZIC: Ms Grey might also want to check the veracity of paragraph (d) not party part 2, but it's not a big issue.

PN924

MR GALLAGHER: And paragraph 33, a reference to 55 on the second last line, that should be 550, it is a typographical error there as well. Now, those corrections being made and I don't think there are any similar corrections to make to the statements of Mr Fitzgerald and Mr Barber, my understanding of my instructions is that I would not be adducing any further evidence from any of those persons with this exception, a non controversial exception if I could say so. If the Commission goes to the statement of Ms Grey again, the Commission can see in paragraph 1, that she holds a certain position and if the Commission goes to paragraph 3, the Commission can see that she has been in that position since June 1999, a relatively short time.

PN925

I was going to ask Ms Grey what her experience in industrial relations matters was for the period prior to 1999 and I can indicate and I do this on the record and perhaps, Mr Terzic after consultation with us, might be prepared to accept it, that Ms Grey worked in an industrial relations capacity with the Australian Chamber of - sorry, Australian Business Limited for some years prior to 1999 and thus has some understanding of Federal jurisdictional matters, if I could term that way.

PN926

Now, apart from those things, it was not my intention at all to ask any questions of the witnesses other than to introduce themselves in the normal way in the witness box, ask them if their statements were true and correct, tender the statements and then sit down. So that wouldn't have taken very long at all and if Mr Terzic is in a position where he might not wish to cross-examine those people, then obviously that will be a relevant saving of time.

PN927

HER HONOUR: Yes, well could I indicate that what I think we should now do is deal with and dispose of the section 111AAA point. I suspect at that time, an application will be made for an adjournment and what I understand has been said so far suggests, it will not be opposed. Tomorrow I wish all witnesses to be in attendance and able to give evidence.

PN928

If, during the remainder of the day, the two of you reach some accommodation about any one or any number of witnesses not needing to attend nor to be cross-examined, well so be it. That is a matter you can announce to me at the beginning of the hearing tomorrow morning. I would be happy to start _ hour earlier tomorrow and take a shortened lunch break to ensure that any witnesses are finished within the day, but I must say, it's rather shaping up - the way it's shaping up suggests to me that any witnesses that will need to be called will be able to be disposed of, probably even within regular or normal sitting hours.

PN929

MR GALLAGHER: That could be.

PN930

HER HONOUR: Yes, but as I say, before we go today, bear in mind that we could have a 9.30 start if that would be useful. Yes, I can do that, but probably little is to be gained. Commissioner Roberts has his swearing in ceremony tomorrow and I had intended to have a 10.30 start tomorrow and not a 10 o'clock start. So, we can start even earlier, we could start at nine, but probably all we would be able to do then is achieve about ³/₄ hour of a hearing. Alternatively, we wouldn't be starting till 10.30 tomorrow morning.

PN931

MR GALLAGHER: But having regard to what Mr Terzic has said and we will confirm with him later, it could well be that a 10.30 start would not cause us any difficulty, it would not cause the Commission any difficulty either, but we will confer with Mr Terzic about that.

PN932

MR TERZIC: Mr Oliver has got a long way to come tomorrow, so in the event that there is some delay with aviation or traffic, a 10.30 start might be more prudent and given that, on the face of it and on the basis of what I've uncovered in my investigation as to how the Commission in Courts have proceeded with these matters, I feel relatively confident that the evidence in the statements could stand and there would be no further need for me to cross-examine on any of that material.

PN933

HER HONOUR: Sorry, I think I misunderstand that. I think I understood what you were saying about Mr Oliver, again without making any concession at the moment, but your current thinking is that you may not need the witnesses, the AIG witnesses to attend to be cross-examined.

PN934

MR TERZIC: Yes, I am relatively confident that that will be the case. I will just - I had in mind to cross-examine them on various points. I thought that at this stage that some of the evidence that might fall from them might in fact be useful later into proceedings perhaps if the Commission is pressed to make an award in this matter and so I thought that there would be some utility in cross-examining some of these witnesses on various points that might, as I say, be useful for the Commission in later matters. But if we are to confine ourselves at this leg to simply the dispute finding, I can say I am quite confident that the evidence in the statements can stand and I will not be calling for the witnesses to present themselves for cross-examination. What I am eluding to is a truncation of proceedings somewhat.

PN935

HER HONOUR: Well, you and Mr Moir and Mr Gallagher talk about all of that then, would you, immediately after we adjourn today?

PN936

MR TERZIC: Yes and I was going to add something that I have neglected to say from the start is I do apologise to the Commission for all of this.

PN937

HER HONOUR: Thank you.

PN938

MR TERZIC: I meant to make that clear earlier. Secondly, after we have conferred, tout de suite we will inform you of a revised estimate of the time required for these proceedings. Mindful that once the argument gets down to the various technical aspects of a dispute finding, submissions in that regard do then themselves to writing. I am willing to give everything orally, but to the extent that there might be any requirements to supplement anything that might arise in the course of the proceedings, I would suggest that brief written reply might be the most expedient way to deal with that. What I am eluding to is hopefully we could perhaps restrict the sitting time perhaps to just tomorrow or tomorrow and _ day, if everything goes according to plan.

PN939

HER HONOUR: Yes, well I should indicate that from a panel point of view, I would very much appreciate knowing whether I could list a pressing matter on Friday. This matter has got that day, it will not be abandoned until you have both an opportunity to address me on that, but just during the course of today, would you bear in mind that I have a matter that really needs to be listed this week and I don't know that there is any other panel members that can reach it. So if I was to be advised at the very least whatever we do over the next two days, I would not be - you would not be needing Friday, I would very much appreciate that.

PN940

MR GALLAGHER: Yes, if we could confer with Mr Terzic about that. The way that things have developed over the last few minutes, it appears that we might be able to give some positive indication to the Commission as to that.

PN941

HER HONOUR: Yes, good.

PN942

MR GALLAGHER: And we will do that as soon as we possibly can.

PN943

HER HONOUR: Well, shall we deal with this section 111AAA matter or is there anything else we need?

PN944

MR GALLAGHER: If the Commission pleases, yes.

PN945

HER HONOUR: I did receive a letter from Mr Moir about that and it attaches to it what the parties had agreed should be the order that should issue. Is that still the agreement, has there been any modification on that?

PN946

MR GALLAGHER: Yes, well could I give the Commission some background to that?

PN947

HER HONOUR: Indeed.

PN948

MR GALLAGHER: The basis of the application has been previously explained to the Commission and the Commission will understand that we tendered on 3 September an exhibit which became AIG2, could I briefly refer to that. That exhibit covers essentially two matters, that is a list of employers represented by my client who are opposing or who would be opposing the finding of an industrial dispute - putting that aside at the present time - and then a list of employers represented by my client who pressed an application pursuant to section 111AAA and the Commission can see from the covering letter to that exhibit that that list was split up on a geographical basis, on a State by State basis and set out the nature of the business and the types of work performed and also included the relevant State awards upon which my client relied for the purpose of section 111AAA.

PN949

And going to the schedule, just the first page of it, the Commission can see that the name of the company is set out, the business, types of employees and then the awards are on the far right hand side referred to by a table and if the Commission then goes right to the end of that schedule the index or the table is then set out, by reference firstly - this is at page 18 of the facsimile message to New South Wales Awards and then Queensland Awards, South Australian Awards, Western Australian Awards and Tasmanian Awards.

PN950

Now arising out of that exhibit there were some discussions between Mr Moir on behalf of AIG and Mr Terzic on behalf of the union and those discussions resulted in a consent position being reached. Now on 22 October we sent to the Commission a letter with an attached draft order, it might be appropriate, we are in the Commission's hands as to this, that the letter of 22 October, being the draft order might be marked as an exhibit.

PN951

HER HONOUR: Yes, that will become exhibit AIG3.

EXHIBIT #AIG3 DRAFT ORDER

PN952
MR GALLAGHER: If the Commission pleases. Now I don't read that letter to the Commission, but I do draw attention to the second last paragraph on page 1 of it where the Commission quite appropriately put the parties on notice by reference to transcript PN844 that the Commission needed to be appropriately satisfied, having regard to section 111AAA. Now the draft order which is part of AIG3 sets out a list of 85 companies in various States that are the subject of the draft order which is consented to.

PN953

Now, could I take the Commission to section 111AAA and I don't seek to read any of the sections to the Commission, the Commission is obviously familiar with them, but I refer to section 111AAA(1) where that says, just in the introductory words:

PN954

If the Commission is satisfied that a State award or State employment agreement -

PN955

etcetera, etcetera, etcetera. Now, the Commission in my respectful submission will be relevantly satisfied pursuant to subsection 1 having regard essentially to two things, one is exhibit AIG2 which we've just referred to and secondly the consent position arrived at by the parties. Now, where there's a reference to the words "cease dealing" in subsection (1) and those words are defined in subsection (4) and the Commission sees that and I simply give the Commission a reference to it.

PN956

The order which is sought obviously follows subsection (4) paragraph A. Now if the Commission pleases, that is the application we make, as I say, consented to by the union and we would respectfully request of the Commission that an order might issue in accordance with the draft attached to AIG3. If the Commission pleases.

PN957

HER HONOUR: Yes, I note in relation to the definition of "cease dealing" it would appear the draft order that has been tendered relates to paragraph A, but I do note that the order there envisaged is to dismiss the whole or part of a matter to which a dispute relates.

PN958

MR GALLAGHER: Yes.

PN959

HER HONOUR: Obviously there are a number of disputes that, having occurred, there are then matters or applications that are made in this place and one can understand that making an order in relation that matter or application relating back to the industrial dispute might be made under A. The alternative is to refrain from hearing the dispute and they seem to be slightly different matters and what I'm being - they seem to be orders of a slightly different nature and as I understand it I'm being asked to dismiss the industrial dispute. Is that the same as being asked to dismiss the whole or part of a matter to which the industrial dispute relates? I don't know its - just there is probably an important difference in the - a reason for the difference of wording in A and B?

PN960

MR GALLAGHER: Yes, as we see it, if the Commission pleases, the industrial dispute referred to in the order is the industrial dispute pursuant to, I think its section 4, not section 101 and the Commission understands the case law as to that, pursuant to section 111AAA. Now what is being sought by consent between the parties is the dismissal of the dispute between the union, that is that section 4 dispute and the employers listed in attachment A. Now of course in terms of the proceedings that are still on foot, that leaves the section 4 dispute untouched as to the those other companies except to the extent that the Commission has already found a dispute.

PN961

HER HONOUR: Yes.

PN962

MR GALLAGHER: Pursuant to section 101 and arising out of the proceedings to follow in this case, the Commission will either make further finding as to section 101 or will find that there is no industrial dispute within the meaning of the Act pursuant to section 101 as do those other companies. Putting that aside for the time being, this simply has a limited application in terms of the section 4 dispute, as to the 85 companies listed in the draft order. If the Commission pleases.

PN963

MR GALLAGHER: Mr Terzic?

PN964

MR TERZIC: In effect we consent to the Commission to cease dealing with the matter now at hand, but mindful of what your Honour has just said about some of the more nuanced aspects of the definition of cease dealing in subsection (4). It might be correct that in exercising power available to it under subsection 4 the Commission doesn't technically speaking dismiss an industrial dispute as such, but rather it would dismiss the whole or the part of the matter. Those are the words in the statute. I'm not sure if the Commission can, in effect, dismiss a dispute, but what I believe it can do is dismiss further hearing or determination of a dispute which, without putting too much emphasis on the semantics of the matter, has the same effect, but the wording I've suggested I believe conforms more closely to what the statute provides - - -

PN965

HER HONOUR: I must say that whenever in doubt I paraphrase the statute in an order.

PN966

MR TERZIC: Yes.

PN967

HER HONOUR: Putting off may be to another day what might just be an exercise in semantics or might be very important legal difference. I wonder could I just interrupt you for a moment. Mr Gallagher, is the way to satisfy me about the matter that I've raised which, as I say I don't know if its significant, but it just did concern me that I was not unwittingly doing something that had some legal implications that I had not twigged to. Would the way to accommodate my concern be to just pick up the words in subsection (a) of 4?

PN968

MR GALLAGHER: Yes, I hear what the Commission says about that, rather than paraphrase a statute it is always more appropriate to pick up the words of the statute.

PN969

HER HONOUR: The words, even better, correct.

PN970

MR GALLAGHER: Yes.

PN971

HER HONOUR: Shall we do that or could I ask you to speak about that matter and see if you could reach some accommodating of in respect of any further amendment that might be needed to the draft order?

PN972

MR GALLAGHER: Well, what we might ask is this, that when one looks at the draft order one could almost make the amendments on the run.

PN973

HER HONOUR: Yes.

PN974

MR GALLAGHER: Could this amendment be made pursuant to section 111AAA of the Workplace Relations Act 1996, the Commission dismisses the whole or part of the matter to which the industrial dispute (C No. 24167 of 2000) relates between etcetera, etcetera and employers listed in attachment A. That seems to pick up the words of section 111A(4) paragraph A.

PN975

HER HONOUR: Yes, I'm sorry to do this to you, can you remember what you just said, I - after inserting in the second line - - -

PN976

MR GALLAGHER: Dismisses the whole of the matter to which the industrial - - -

PN977

HER HONOUR: You, at that time, didn't say or part?

PN978

MR GALLAGHER: To which the industrial dispute (C No. 24167 of 2000) relates.

PN979

HER HONOUR: Yes and then pick up between?

PN980

MR GALLAGHER: That picks up the wording exactly of paragraph A between the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and employers listed in attachment A. That perhaps covers it.

PN981

HER HONOUR: It wouldn't be more correct to say "that part," I'm dismissing that part of the matter to which the industrial dispute in C 24 relates?

PN982

MR GALLAGHER: It might be more correct though if - - -

PN983

HER HONOUR: I'm just wondering. I might take some of the parties by surprise, may be delight them if I was to dismiss the whole of the matter. I, obviously in making this order, do not wish to disturb what I have already done in terms of orders arising out of this log. That would be my only concern.

PN984

MR GALLAGHER: Of course.

PN985

HER HONOUR: Anything useful to say Mr Terzic?

PN986

MR TERZIC: Your Honour I think the more prudent approach at this stage might be for the parties to briefly confer and hand up an agreed draft order.

PN987

HER HONOUR: Yes, good.

PN988

MR TERZIC: In saying that I don't resile from what I've said and that is that we will consent to an order being made under section 111AAA that in effect has - dismisses the Commission from having any further jurisdiction over the union and the matters demanded of the employers in attachment A.

PN989

HER HONOUR: I understand.

PN990

MR TERZIC: And having made that clear I will not resile from that, but just - its as much for the - in the interests of what the AIG as the AMWU that that order be expressed in a way that is not subject to further challenge or dispute. Mr Gallagher's words might be appropriate after I've reflected and conferred with him, but I would just seek a few moments just to digest it.

PN991

HER HONOUR: Yes, that's fine, I was just going to say that we could prepare any draft, its obviously - whatever its going to be its going to be brief, if we could prepare that so that you're happier if both of you had the words in front of you, so I will ask my associate to speak to you when we adjourn, but is it appropriate that we take a short break now, so that you can speak about this matter and may be also make any calls or talk about how we use the next couple of days?

PN992

MR GALLAGHER: Well that might be appropriate, if the Commission pleases.

PN993

HER HONOUR: Is a quarter of an hour adequate, if you have some difficulties within that time let my associate know, but I'll nominate 11.15 as a resumption time.

SHORT ADJOURNMENT [11.05am]Y

RESUMED [11.25am]

PN994

HER HONOUR: Mr Gallagher?

PN995

MR GALLAGHER: If the Commission pleases, your Associate has kindly shown us the draft order and in fact Mr Terzic and myself have looked at that and if that order could simply replace the draft that we'd submitted and attachment A would then be relevantly attached to that order, if the Commission pleases, and we have had some discussions about the further conduct of the other proceedings.

PN996

HER HONOUR: Before you go to those, shall we dispose of this matter, is that convenient?

PN997

MR GALLAGHER: If the Commission pleases, yes.

PN998

HER HONOUR: Mr Terzic, do you want to say anything more about the section 111AAA matter?

PN999

MR TERZIC: Simply to say that the version that your Associate has distributed in the adjournment is accepted and will be consented to by the AMWU.

PN1000

HER HONOUR: All right, good. Now, the final thing is the necessity - we'll go off transcript for a short time.

OFF THE RECORD

RESUMED [11.30am]

PN1001

HER HONOUR: Based on the submissions that have been made in this matter and the content of exhibit AIG2 and 3, I am satisfied that an order pursuant to section 111AAA should issue. It will issue in the following terms:

PN1002

Pursuant to section 111AAA of the Workplace Relations Act the Commission dismisses the whole of the matter to which the Industrial dispute C2000/24167 relates between the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and employers listed in attachment A.

PN1003

The employers that will be listed in attachment A are those employers referred to in exhibit AIG2, and in particular, at pages 4, 5 and 6 of that correspondence.

PN1004

Is that correct, or - I'm so sorry, I should have mentioned AIG 3 because I do not know if AIG3 is the same. May I just correct something I have just indicated:

PN1005

Insofar as the order refers to employers listed in attachment A, those employers will be those referred to in exhibit AIG3 in the attachment there, which is attachment A.

PN1006

I might just indicate that they are on pages 5, 6 and 7 of that document. The issue will be sealed and signed by me in due course and a copy will be provided to the parties.

PN1007

Now, I assume that we should not go off transcript to talk about how we deal with the remaining matters that are listed this week? Yes, thank you.

OFF THE RECORD

RESUMED [11.40am]

PN1008

HER HONOUR: Mr Terzic?

PN1009

MR TERZIC: By way of other matters that need to be disposed of before the Commission's called on to make a final determination in this matter, I have sent to her Honour and distributed to the parties, a letter dated 3 October 2001 and I wish now to have that letter that should be on file with the Commission, marked as an exhibit?

PN1010

HER HONOUR: Yes, I will. The letter to the Registrar from the AMWU dated 3 October, will become exhibit AMWU 9.

EXHIBIT #LETTER TO THE REGISTRAR FROM THE AMWU DATED 3.10.01

PN1011

MR TERZIC: I'll just speak briefly to the letter. Various paragraphs are set out. One of them deals with - paragraph 1 deals with, an application by the AMWU to vary the Commission's dispute finding, issued on 16 February 2001. The variation that we suggest, is that paragraph 3, which currently reads and I quote:

PN1012

The dispute extends beyond the limits of any one State of Australia -

PN1013

be varied to read, and I quote:

PN1014

3. The dispute extends beyond the limits of any one State of Australia, but it does not exist in the State of Western Australia.

PN1015

We seek that variation because we no longer seek to have the Federal Commission deal with the dispute in Western Australia. The AMWU will maintain its demands in that State, but it will seek a resolution of those demands outside of Federal Law. We take this approach upon the Commission formally recognising an undertaking from the Chamber of Commerce and Industry, Western Australia in the terms of which are captured in a letter from the CCIWA, dated 22 June 2001, under the hand of Michael Borlase, a copy of that letter is attached to exhibit AMW 9.

PN1016

Paragraphs 2, 3 and 4, deal with principally, the AIG's 111AAA application and there, we also just confirm that the parties against whom we seek a finding of a dispute, are now those listed in exhibit AIG 2, under the heading "Companies", the Australian Industrial Group is representing, who are opposing the finding of a dispute and there are 100 companies, there listed. So, that clarifies against whom we seek a findings dispute.

PN1017

Lastly, in paragraph 5, of exhibit AMWU 9, we say:

PN1018

In addition to whoever is excluded by the operation of the above, the AMU can indicate that the following parties are also to be excluded from proceedings ...(reads)... industrial dispute against the following numbers - 14, 67, 96, 97, 98, 109, 244, 245, 252, 414, 415, 416, 425, 432, 488, 492, 628, 629, 634 and 636.

PN1019

Just by way of amplification and elucidation, I can add, that that would take of these proceedings any of the parties represented by the Australian Mines and Metals Association and I hope that will assuage any concerns held by Mr Black of that said organisation.

PN1020

I think that deals with all of the preliminary matters and now the substantive element of the case is open to proceed and we will do that tomorrow, as planned.

PN1021

HER HONOUR: Anything further you wish to say, Mr Gallagher, before we adjourn until tomorrow?

PN1022

MR GALLAGHER: Yes, if the Commission pleases, can I just clarify one thing as to AMWU 9?

PN1023

HER HONOUR: Yes.

PN1024

MR GALLAGHER: Could I take the Commission to paragraph 4. After 111AAA on the third line, I think should be inserted there - I'm sorry, my instructing solicitor's just put a note on here which completely changes the sense of what was there. Let me read it?

PN1025

HER HONOUR: Yes.

PN1026

MR GALLAGHER: I'm sorry, I now understand it. The first sentence of that, I think should read:

PN1027

The parties against whom the AMWU still seeks a finding of dispute are limited to those companies represented by the AIG (namely, those companies who are not subject to section 111AAA and those companies outside Western Australia.

PN1028

And then the paragraph can go on. I think that's reflective, therefore, of what Mr Terzic has, in effect, just said, that that clarifies it from the point of view of my client.

PN1029

HER HONOUR: All right. Do there happen to be any companies that should fall within those exclusions you've nominated, that still find themselves on AIG 2, under the heading of `Companies the AIG is representing', who are opposing a finding of dispute. I suppose it's not immediately apparent because of - - -

PN1030

MR GALLAGHER: Can I seek to check that?

PN1031

HER HONOUR: Yes.

PN1032

MR GALLAGHER: That the answer to that, should be, no.

PN1033

HER HONOUR: I can assume whatever occurs, I still have a task to do this week.

PN1034

MR GALLAGHER: Yes.

PN1035

HER HONOUR: No matter how few companies there might be left standing and so, if, when I get to the stage of saying there should be a finding of dispute, at least I know who the last companies standing are, and if I don't, well again, I know those, in respect of whom, I am not persuaded.

PN1036

MR GALLAGHER: Yes.

PN1037

HER HONOUR: Yes, all right, good. Now, I think, that's probably as far as we go today. We will now adjourn until 10.30am tomorrow morning.

ADJOURNED UNTIL WEDNESDAY, 31 OCTOBER 2001 [11.50am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

PRIVATE EXHIBIT #AIG3 DRAFT ORDERtc \f P \l 9
PRIVATE EXHIBIT #LETTER TO THE REGISTRAR FROM THE AMWU DATED 3.10.01tc \f P \l 9